(영문) 대전지방법원 2009.11.27.선고 2008가단69661 판결

1. The defendant shall pay to the plaintiffs 5% interest per annum from December 6, 2008 to November 27, 2009, and 20% interest per annum from November 28, 2009 to the date of full payment.

2. Plaintiff A, B, E, F, G, I, K, M, Q, and V are dismissed.

3. Of the costs of litigation, the costs incurred between the Plaintiff C, D, H, J, L, N, P, R, S, T, U and the Defendant are all borne by the Defendant. The costs incurred between the Plaintiff A, B, E, F, G, I, K, M, Q, Q, and the Defendant are 10 minutes, and the remainder 1 is each borne by the Defendant.

4. Paragraph 1 can be provisionally executed.

Purport of claim

(1) Paragraph (1) of this Article and the defendant filed a claim against the plaintiff A, B, E, F, G, I, K, M, Q, and V in attached Table 1.

The notice shall be given from the day following the service of the complaint of this case with respect to each of the above amounts and each of the above amounts

5% per annum and 20% per annum from the next day to the date of full payment.

d. Payment of money:

Reasons

1. Basic facts

A. The Plaintiffs are those employed by the Defendant and retired while serving as street cleaners, and the date of their employment, and the date of their retirement are as indicated in the column of “Membership Date” in the attached Table 1, and “Retirement Date” column.

B. The Ministry of the Interior and Safety (the Ministry of the Interior and Safety) from 2005 to 2008 notified the Defendant of the standards for the compilation of the budget for street cleaners's deputy members or the reference materials for the compilation of the budget for street cleaners' personnel expenses (hereinafter referred to as the "standards for the compilation of the budget in this case"). Based on the above, the Defendant notified the Defendant of the collective agreement (hereinafter referred to as the "collective agreement in this case") from 2005 to 2008 between the National Federation of Trade Unions, Jung-gu, Daejeon Special Metropolitan City (Gu Clean Labor Union) where the Plaintiffs belong to.

B. The Agreement was concluded.

C. From 2005 to 2008, the Defendant paid the Plaintiffs overtime work allowance (over-time work allowance), holiday work allowance, night work allowance, and annual leave allowance calculated on the basis of average wages, including statutory allowances calculated as above. The payment details are as shown in [Attachment 2] paid statutory allowances and retirement allowances.

D. However, ordinary wages set out in the instant collective agreement and budget compilation standards are the total amount of basic wages, special duties allowances, work encouragement allowances, and household support expenses (hereinafter “basic wages, etc.”) among wage items. Among wage items, continuous service charges, fixed meal expenses, wage (in 2007, integrated into fixed-amount food expenses), traffic subsidies, sanitation allowances (hereinafter “ continuous service charges, etc.”) are not included in ordinary wages.

E. Meanwhile, according to the instant collective agreement (Article 26(2) of the collective agreement applied before June 30, 2008), annual leave allowances are to be calculated based on average wages. Moreover, the Defendant did not include family allowances among the wage items in the average wage for calculating retirement payment.

[Evidence] Each entry of Gap evidence Nos. 1 through 21 (including Serials), Eul evidence Nos. 1 through 7 (including Serials), and the purport of the whole pleadings

2. The parties' assertion

A. The plaintiffs' assertion

Since the Defendant’s continuous service additional charges, etc. paid to the Plaintiffs should be included in ordinary wages under the Labor Standards Act due to their nature, the part excluding the additional charges for continuous service from ordinary wages is invalid in relation to the calculation of statutory allowances, such as overtime work, holiday work, night work, and annual leave allowance, among the instant collective agreement.

In addition, it is illegal that the defendant calculates the annual leave allowance without calculating the average wage, and it is also unlawful that the family allowance that the defendant paid to the plaintiffs is included in the average wage due to its nature, but it is also unlawful that the defendant excludes it from the average wage.

Therefore, in relation to overtime work allowance, holiday work allowance, night work allowance, annual work allowance, and retirement allowance paid to the Plaintiffs from 2005 to 2008, the Defendant is obligated to additionally pay the difference between the overtime work allowance, overtime work allowance, holiday work allowance, night work allowance, and due average wage, and overtime work allowance, retirement allowance, and retirement allowance already paid.

B. The Defendant’s assertion (1) that the additional charges for continuous service paid by the Defendant to the Plaintiffs are allowances of a mutually beneficial nature for the preferential treatment of the long-term continuous service provider, regardless of the quality of labor, and as such, the fixed meal costs, salaries, traffic subsidies, and sanitation allowances are paid as welfare expenses not subject to work, their nature is not included in ordinary wages under the Labor Standards Act. Family allowances are not included in the average wage, since they are mutually beneficial benefits that are paid according to the existence of the dependent, not the remuneration for work, and thus are not included in the average wage. (2) Even if they are not, the instant collective agreement on the scope of ordinary wages is valid, and even if they are not so, the instant collective agreement on the scope of ordinary wages is more effective, and even if the retirement allowances are calculated as claimed by the Plaintiffs and the retirement allowances are determined based on their property, it is more than the minimum amount of retirement allowances under the Labor Standards Act and the Act on the Guarantee

3. Determination

(a) Whether the scope of ordinary wages and average wages (1) includes continuous service additional charges, etc. in ordinary wages;

Ordinary wages are ordinary wages that are to be paid for a fixed amount or quality of fixed work periodically and uniformly, which are paid on a fixed and average basis without being attributable to the actual working day or actual amount of wages, and the term "sum payment" includes not only the payment to all workers, but also the payment to all workers who meet a certain condition or standard. The term "specified condition" in this context must be a fixed condition in light of the concept of ordinary wages that intend to calculate a fixed and average wage.

In full view of the purport of each statement in Eul evidence Nos. 1 through 7 (including branch numbers), the defendant shall pay a certain amount every year as additional charges for continuous service to street cleaners who have continuously worked for more than one year in accordance with the collective agreement and budget compilation standards in this case, and shall pay a certain amount every month for all street cleaners with a fixed amount of meal service expenses, wages, transportation subsidy, and sanitation allowance, and the above continuous service additional charges are recognized as having been paid regardless of their actual service performance.

According to the above facts, continuous service additional charges are paid monthly to workers who have reached a certain number of years of service, regardless of actual work performance, and are periodically and uniformly paid, and thus, they are included in ordinary wages. It is reasonable to deem that fixed meal charges, amount of wages, transportation subsidies, and sanitation allowances are not mutually advantageous consideration, but are paid monthly according to the instant collective agreement, regardless of actual work performance, and they are fixed wages paid periodically and uniformly, and are included in ordinary wages.

(2) Whether family allowances are included in average wages

The total wage, which forms the basis for calculating the average wage, shall include all the money and valuables paid by an employer to an employee as compensation for work, which is continuously and regularly paid to an employee and for which an employer is obligated to pay in accordance with the collective agreement and employment rules, regardless of its name.

In full view of the purport of each statement in Eul evidence Nos. 1 through 7 (including branch numbers), the defendant is recognized to have paid every month the amount calculated according to his relation and the number of persons to street cleaners, such as his/her spouse, parents, children, etc. according to the collective agreement and budget compilation standards in this case.

According to the above facts, family allowances are obligated to pay to the defendant under the collective agreement of this case and are uniformly paid to workers meeting certain requirements. Thus, it is reasonable to view that the family allowances are included in the average wage as they are not voluntary and mutually advantageous benefits, but in the nature of remuneration for labor.

B. In the event of occurrence of a duty to pay unpaid overtime work allowance, holiday work allowance, night work allowance, annual leave allowance, and retirement allowance (a) the occurrence of overtime work allowance (a) the duty to pay overtime work, holiday work allowance, night work allowance, and annual leave allowance is the basis for guaranteeing the minimum amount of average wages, as well as the calculation of additional allowances, etc. for overtime work, night work, and holiday work as prescribed by the Labor Standards Act. The above provision does not provide any separate minimum standard for overtime work, night work, and holiday work. If the agreement between labor and management recognizes the validity of the agreement to exclude various allowances to be included in ordinary wages in light of the nature of the agreement between labor and management, it shall be dismissed that each of the above provisions provides that additional allowances shall be paid for overtime work, night work, and holiday work, and therefore, an agreement between labor and management, which excludes allowances to be included in ordinary wages as prescribed by the Labor Standards Act, shall be null and void (see, e.g., Supreme Court Decision 9Da6375, May 29, 1994).

In light of the above legal principles, with regard to the calculation of overtime work, holiday work, and night work allowance in the instant collective agreement, the part excluding the additional continuous work payment charges, etc. in ordinary wages shall be null and void. Therefore, in calculating overtime work, holiday work, and night work allowance to be paid to the plaintiffs, it is unlawful to calculate the above allowances based on ordinary wages only on the total amount of basic wages excluding the additional continuous work payment charges, etc. Therefore, the defendant is obliged to additionally pay the difference between the fixed overtime work, holiday work, night work allowance and the fixed overtime work, holiday work, and night work allowance already paid to the plaintiffs.

In addition, according to the collective agreement of this case, the annual leave allowance is to be calculated based on the average wage, but the defendant calculated it based on the ordinary wage, so the defendant is obligated to pay the plaintiffs the difference between the annual leave allowance paid based on the legitimate average wage and the annual leave allowance already paid.

(b) Retirement pay;

According to the above review, in calculating the retirement allowance to be paid to the plaintiffs, the defendant omitted family allowances from the average wage which is the basis thereof, as well as overtime work, holiday work, night work, and annual leave work allowances which are illegally calculated as above. Thus, the defendant has a duty to pay the plaintiffs the difference between the "fixed retirement allowance" and the "fixed retirement allowance" already paid, on the basis of legitimate average wage, including family work allowances omitted.

(2) Scope of payment obligation

The details of property-fixed overtime work allowances, holiday work allowances, night work allowances, and retirement allowances based on the lawful ordinary wage including continuous service additional charges, etc. are as stated in the attached Table 3, and the details of retirement allowances are as stated in the attached Table 3, statutory allowances, and retirement allowances. The detailed details of calculation are as stated in the attached Table 3. The aforementioned detailed details of calculation are as follows: (a) the property-fixed overtime work hours, holiday work allowances, night work allowances, annual work allowances, retirement allowances, retirement allowances, and the difference between the fixed overtime work allowances, overtime work allowances, night work allowances, annual work allowances, and retirement allowances paid, are as stated in the attached Table 1.

C. Defendant’s assertion (1) The validity of the instant collective agreement on the scope of ordinary wages is asserted.

The defendant asserts to the purport that "over-time work, holiday work, and night work are naturally scheduled due to the characteristics of the plaintiffs' occupation, so their statutory allowances have already been determined in consideration of the total amount of wages, which have been distributed to the plaintiffs through basic pay and statutory allowances, etc. Therefore, even if some wages were omitted in the calculation of ordinary wages, and payment of overtime work allowance, holiday work allowance, and night work allowance was made based on them, the total amount of the fixed wages meets the total amount of wages, and it is a working condition that is not disadvantageous to workers, so the purpose of paying statutory allowances under the Labor Standards Act is not likely to be circumvented, and thus the collective agreement on the scope of ordinary wages is valid."

However, the submitted evidence alone is insufficient to recognize that the legal allowances for overtime work, holiday work, and night work have already been determined by taking into account the total wage amount and that such allowances have already been paid through the wage agreement, and there is no other evidence to acknowledge it. The defendant's assertion on this premise is without merit. (2) The defendant's assertion on the comprehensive wage agreement related to overtime work allowance is without merit.

The Defendant asserts to the effect that “The Plaintiffs’ additional claim for overtime work allowance is unreasonable since it is valid as an agreement under the comprehensive wage system favorable to the Plaintiffs who are workers, regardless of whether they actually work or not, and whether they work overtime work hours.”

In full view of the overall purport of the arguments in evidence Nos. 3 through 7, the Defendant deemed that the Plaintiffs are engaged in overtime work at an average of two hours a day regardless of actual working hours or actual working hours, taking into account the characteristics of the garbage treatment work in accordance with the collective agreement and budget compilation standards in this case, and paid allowances corresponding thereto. However, it is difficult to deem the above recognition alone that the comprehensive wage system was concluded between the Plaintiffs and the Defendant on overtime work, and there is no other evidence to acknowledge it otherwise. Rather, as seen above, the work hours have been regarded as working hours regardless of whether the Plaintiffs are on overtime work or not, and regardless of working hours.

The defendant, who is an employer, is not allowed to challenge the plaintiffs' actual working hours on the ground that they fall short of the above agreed working hours. Therefore, the defendant's above assertion is without merit.

(3) Claim on the application of the actual working hours pertaining to the holiday work allowance.

The defendant asserts to the purport that "The defendant, even though the plaintiffs' actual hours of holiday work are 26 hours a month, paid the plaintiffs a holiday work allowance by applying 36 hours a month to the plaintiffs, so the actual hours of holiday work should be applied when setting a holiday work allowance."

However, even if the Defendant’s actual holiday working hours between 2005 and 2008 are 26 hours a month ( = 6 hours X 4 hours + 2 hours a month = March 25), it appears that the Defendant had impliedly reached an agreement to pay the holiday work allowance per day even if he/she works for 6 hours a day in the calculation of the holiday work allowance between 005 and 2008 ( = 8 hours a week + 4 hours a week + 4 hours a week, 00 hours a day a day a day, and even if he/she works for 2 hours a day on Sundays, 00 days a day a day a day a day off duty allowance is to be paid on 0.5 days a day a day off, so the Defendant’s assertion is groundless. (4) The Defendant’s assertion to revoke the wage increase

The defendant argues to the purport that "the amount of the total wage determined within the limit of 2-5% of the total wage in the year concerned, and the rate of wage increase exceeds 23-25% as claimed by the plaintiffs, the part of the rate of wage increase exceeding 2-5% of the collective agreement in this case is erroneous in the motive that the defendant entered into the agreement in this case, which is the important part of the collective agreement in this case, and is indicated as the contents of the agreement in this case. Thus, the defendant is revoked by the delivery of the preparatory document on August 12, 2009. Therefore, even if there is any unpaid wage to the plaintiffs on domestic affairs, it shall be determined on the basis of basic salary and continuous payment additional, etc. in accordance with the collective agreement in 2005."

However, the Defendant’s obligation to additionally pay the difference between the statutory allowances and retirement allowances which the Defendant fixed to the Plaintiffs and the statutory allowances and retirement allowances already paid to the Plaintiffs is only a result of the violation of the Labor Standards Act and invalidation of the part excluding the additional continuous service charges, etc. in ordinary wages in relation to the calculation of statutory allowances under the instant collective agreement, and it is difficult to see that there was an error as argued by the Defendant as to the rate of increase in wages in the process of concluding

(5) The allegation that the payment of the existing retirement pay is valid

The Defendant paid to the Plaintiffs an amount equivalent to the average wage for 30 days per year of continuous employment (10%) as an amount equivalent to 150% added 50% by applying the progressive system in accordance with the collective agreement and budget compilation standards in this case. The Defendant calculated the ordinary wage and average wage as claimed by the Plaintiffs and determined the retirement allowance based on it, the Defendant should calculate only the amount (10%) equivalent to the average wage for 30 days per year of continuous employment under the Labor Standards Act and the Act on the Guarantee of Workers' Retirement Benefits as retirement allowance, and according to the collective agreement in this case, only the amount equivalent to the average wage for 30 days per year of continuous employment.

The amount equivalent to 150% of the total amount of 50% added to the total amount of 50% shall not be calculated as retirement allowance. According to this, the Defendant’s payment of the existing retirement allowance is valid, as it is apparent that the amount of the existing retirement allowance paid by the Defendant exceeds the lower limit of the retirement allowance guaranteed by the Labor Standards Act and the Act on the Guarantee of Workers’ Retirement Benefits. Accordingly, the Defendant’s additional payment of the retirement allowance is

However, the part concerning the payment of retirement allowances under the instant collective agreement, i.e., the agreement to pay 150%, adding 50% to the average wage for 30 days per year of continuous employment, is not in violation of the Labor Standards Act and the Workers' Retirement Benefits Guarantee Act, and thus null and void. However, the part concerning the calculation of statutory allowances under the instant collective agreement, excluding the additional payment for continuous employment, is asserted as null and void. Rather, under the instant collective agreement, the part concerning the payment of retirement allowances under the instant collective agreement on the same premise is valid.

Based on the difference between the fixed retirement allowance and the existing retirement allowance, only the difference is claimed.

In addition, Article 8 (1) of the Guarantee of Workers' Retirement Benefits Act guarantees the lowest limit so that "not less than 30 days' average wages for one year of continuous employment should be paid as retirement allowances." Therefore, the part concerning the payment of retirement allowances in the instant collective agreement is valid, and therefore, when the defendant re-determinations a retirement allowance on the basis of legitimate ordinary wages and average wages, the amount equivalent to the amount equivalent to the average wages for 30 days per year of continuous employment as well as the amount equivalent to 150% added by 50% by applying a progressive system in accordance with the instant collective agreement shall be calculated as retirement allowances.

Therefore, the defendant's above assertion on different premise is without merit. (6) The defendant's assertion on waiver of wage claims under the collective agreement in 2008 is without merit.

The defendant asserts to the purport that "the plaintiffs waive all the right to claim wages related to ordinary wages before December 31, 2007 through Article 45 (3) of the collective agreement of 2008 which was concluded on August 23, 2008 and came into force on January 1, 2008," and that "the defendant has no legal allowances and retirement allowances to be paid additionally to the plaintiffs."

However, all of the plaintiffs retired before the collective agreement was concluded in 2008, and in particular, the remaining plaintiffs, other than plaintiffs I, K, Q, and V, retired before January 1, 2008 to which the above collective agreement applies, and the wages and retirement allowances for which specific right to claim payment has already occurred shall be transferred to the worker's private property area and shall be entrusted to the worker's disposal, and the trade union cannot waive them by the collective agreement without the worker's individual consent or authorization. Thus, the defendant's assertion is without merit.

4. Conclusion

Therefore, the defendant is obligated to pay to the plaintiffs damages for delay calculated by the rate of 5% per annum under the Civil Act from December 6, 2008 to November 27, 2009, the day following the day of service of the complaint of this case, and 20% per annum under the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings from November 28, 2009 to the day of full payment.

If so, the claims of the plaintiff C, D, H, J, L, N, P, R, S, T, and U are accepted on all the grounds of the above recognition, and the claims of the plaintiff A, B, E, F, G, I, K, M, Q, Q, and V are accepted within the above recognition scope, and they are dismissed as they are without any grounds. It is so decided as per Disposition.